OPINION
Appellant challenges his convictions of first-degree aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2006), and fifth-degree possession of a controlled substance in violation of Minn. Stat. §§ 152.01, subd. 16a, .025, subd. 2(1), 609.101, subd. 3 (2006). Appellant contends the district court committed prejudi
FACTS
Around 7:15 p.m. on October 30, 2007, T.G. was walking down Portland Avenue South in Minneapolis. At the corner of Portland Avenue and 24th Street, a man, later identified as appellant Roosevelt McClenton, approached T.G. and asked him for money in an aggressive and hostile manner. According to T.G., appellant looked “like he was on drugs” and was “very unstable.” T.G. told appellant that he did not have any money. However, appellant “kept on pressing [him]” and told T.G. “he was going to kick [his] ass,” so T.G. reached into his pocket and gave appellant a $20 bill. Appellant persisted and T.G. gave him another $20 bill and some $1 bills. After T.G. handed over the money, appellant punched him in the head. T.G. fell to the ground. The ordeal ended when appellant told T.G. to “run” and T.G. got up and ran down 24th Street. T.G. suffered a sрlit lip, a knot on his head, and a knot on his cheek bone.
Minneapolis police officers Kenneth Await and Christopher Humphrey responded to the scene first. Officer Await observed appellant lying on the grass on the corner of Portland and 24th. Appellant was not wearing a shirt and his pants were down around his thigh area. Appellant got up off the ground and was shaking his arms, ranting and raving, and “saying biblical homages.” Appellant refused to comply with the officers’ orders to get down on the ground. Officer Await thought appellant was in a “cocaine psychosis,” and called Officer Jeffrey Werner, who had a taser, because people in this situation are “super strong” and “don’t have any pain tolerance, and it just would be an all out fight.” Officer Werner observed the other officers attempt to mace appellant to no avail. Appellant wandered onto Portland Avenue into traffic. Officer Werner subsequently tased appellant.
Appellant, still struggling and speaking incomprehensibly, was loaded into an ambulance. Inside the ambulance, a paramedic observed appellant “spitting and turning his head a lot.” Next to the side of appellant’s mouth, she saw a baggie containing a substance she believed to be crack cocaine. The substance was later identified as crack cocaine.
Appellant was charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1. Prior to trial, defense counsel
1
gave notice of appellant’s intent to rely upon the defenses of “Mental Illness or Deficiency” and “Intoxication.” The parties appeared before the district court on May 5, 2008. Appellаnt had previously undergone a Rule 20.02 evaluation by a court-appointed psychologist. The district court noted that while the psychologist found appellant was in a “drug-induced psychosis” at the time of the alleged offense, the psychologist “did not give an opinion” on whether appellant had a viable mental-illness defense “because she believed that a psychosis caused by a
volun
However, on May 12, 2008, the district court issued an order requiring appellant to “make an offer of proof constituting prima facie evidence that an involuntary-intoxication defense exists in this case” before an updated Rule 20.02 evaluation would be ordered. In the accompanying memorandum, thé district cоurt stated:
On May 5, 2008, defense counsel proffered to the Court that the drug-induced psychosis from which Defendant was suffering at the time of the offense was caused by involuntary intoxication. Specifically, defense counsel proffered that in addition to the Defendant’s use of cocaine during the days leading up to the date of offense; the Defendant also smoked marijuana which, the Defendant believes, was “laced” with an unknown substance. According to defense counsel, the Defendant will assert at trial that the psychosis from which he was suffering at the time of the crime was caused by an unanticipated reaction to the drugs he ingested. 2
(Citation omitted). The district court observed that the availability of an involuntary-intoxication defense based on the voluntary ingestion of an illegal stréet drug appears to be an issue of first impression in Minnesota and noted that other jurisdictions have “uniformly” rejected the defense “even if, unknown to the defendant, the illegal drug was ‘laced’ with another substance which caused the defendant to have an unanticipated reaction.” Accordingly, appellant was given until May 28, 2008, to make an offer of proof in support of his defense and provide a “memorandum of law citing legal authority for the availability of the defense. Failure to submit this offer of proof and supporting memorandum will result in preclusion of a mental-illness defense at trial.” The district court record does not reflect that any such offer of proof or memorandum was ever filed.
An amended complaint was filed, adding one count of fifth-degree possession of a controlled substance in violation of Minn. Stat. §§ 152.01, subd. 16a, .025, subd. 2(1), 609.101, subd. 3. The case was subsequently reassigned to a different district court judge for trial. On the first day of jury selection, the parties discussed the previous order. Defense counsel stated that he viewed the order as precluding the involuntary-intoxication defense. Defense counsel added that he had an expert witness ready, but the expert did not prepare a report in light of the prior order. The district court said it would follow the order as “the law of the case” and “it’s also, I believe, a carefully researched and well-thought-out and correct decision in the case, that I believe I would have made ... as the record stands at this point, there is insufficient evidence, both factually and legally to provide testimony on the issue of involuntary intoxication in this case.”
The next day, appellant raised questions to the district court about his representation and the ability to present his defense. With the assistance of counsel, it became clear that appellant was talking about testimony by an individual, who was with appellant “immediately before” the alleged offenses and was to testify about appellant’s drug use in connection with the involuntary-intoxication defense, and the expert retained by defense counsel. Defense counsel stated these witnesses would not be called, in light of the prior preclusion. After a brief inquiry, appellant was con
A jury trial was held and appellant was found guilty of first-degree aggravated robbery and fifth-degree possession. A subsequent Blakely trial took place on the aggravating factor of whether there was a pattern of criminal conduct under Minn. Stat. § 609.1095, subd. 4 (2006). Among other things, seven criminal complaints were admitted in connection with appellant’s prior offenses. Defense counsel objected to each document, although the record is not entirely clear on the specific grounds for defense counsel’s objections. 3 The jury subsequently found a pattern of criminal conduct. In arguing for leniency at sentencing, defense counsel stated:
[W]e had an expert who we could not use who would say that Mr. McClenton had PCP in his blood. And he had the PCP in his blood not because he wanted to take PCP, but he was taking a different illegal substance, and it was most likely laced with PCP, and it caused an adverse reaction, a reaction that was not — Mr. McClenton wasn’t used to. He wasn’t planning on having such a drug in his system, and he behaved in a way that he hadn’t planned on.
Appellant was sentenced to 180 months in prison, an upward departure from the 111-month presumptive sentence. This appeal follows.
ISSUES
I. Did the district court commit prejudicial error by refusing to instruct the jury on the lesser-included offenses of theft from person and fifth-degree assault?
II. Did the district court abuse its discretion in precluding appellant from presenting evidence on the defense of involuntary intoxication?
III. Were appellant’s substantial rights affected by the introduction of the complaints so as to constitute prejudicial error?
ANALYSIS'
I.
A person “may be convicted of either the crime charged or an included offense, but not both.” MinmStat. § 609.04, subd. 1 (2006). An “included offense” is “[a] lesser degree of the same crime.”
Id,.,
subd. 1(1). Appellate courts review the district court’s denial of a requested lesser-included-offense instruction for an abuse of discretion.
State v. Dahlin,
Appellant’s defense theory was that “there was a simple robbery and then an assault.” Appellant argues that the district court abused its discretion when it denied his request that the jury also be instructed on theft from person and fifth-degree assault as lesser-included offenses within first-degree aggravated robbery. The district court agreed that the theft was subsumed within the aggravated-robbery charge; however, the district court determined that simple robbery was a more appropriate lesser-included offense because there was no rational basis for convicting appellant of theft:
I can see there is a rational basis for the jury on simple robbery, because the difference between simple and aggravated robbery is the question of whether there was an infliction of bodily harm as part of the robbery.... I don’t see how a jury could find the defendant guilty of theft from person. That under the facts here, that [the] only evidence before the jury — you know, direct evidence is [T.G.’s] testimony that it was taken with a threat of force or implied threat of force.
The district court concluded that it was a fact question on whether the robbery was complete 'at the time of bodily injury or threat of force, and observed that
[m]aybe something else was happening separate from this, but that isn’t a basis to convict somebody to say, well, maybe something else was happening. There has to be proof beyond a reasonable doubt in ■ order to convict; and here there is absolutely no evidence that anything other than aggravated robbery, simple robbery, or he’s not guilty. I believe the rest is speculation.
First-degree aggravated robbery occurs when “[a person], while committing a robbery, ... inflicts bodily harm upon another.” Minn.Stat. § 609.245, subd. 1. A simple robbery occurs when a person, “having knowledge of not being entitled thereto, takes personal property from [another] ... and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property.” Minn.Stat. § 609.24 (2006). Theft occurs when a person “intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possessiоn of the property.” Minn.Stat. § 609.52, subd. 2(1) (2006).
It is undisputed that theft is a lesser-included offense of aggravated robbery. “Aggravated robbery requires the commission of a theft; if there were no theft the offense would be- assault. Thus, theft is a lesser included offense of aggravated robbery.”
State v. Nunn,
However, the district court was only required to give the lesser-included-offense instructions if there was evidence to support acquittal on the greater charge and conviction of the lesser-included offense.
Hannon,
In order to elevatе a simple robbery to aggravated robbery, the statute requires only that, while committing a robbery, the defendant either be armed with a dangerous weapon or inflict bodily harm. Here, while defendant was already guilty of robbery once he used the threat of force to compel the victim’s acquiescence in the taking, that fact does not mean that any infliction of bodily harm which followed the taking could not be used to elevate the offense to aggravated robbery. The robbery statute speaks of using force or threats to compel acquiescence in either the taking or the carrying away of the property. It does not require that the use of force or threats actually precede or accompany the taking.
Furthermore, even if it was error not to include the instructions, appellant was not likely prejudiced because the jury had the option of convicting appellant of the lesser-included offense of simple robbery, but instead chose to convict on the greater, aggravated robbery charge.
See State v. Harris,
Because there was no rational basis to convict appellant of theft from person or fifth-degree assault while acquitting him of the greater charge of aggravated robbery, the district court did not commit prejudicial error in denying the requested instructions.
II.
A defendant’s constitutional right to due process includes the right to present a complete defense.
State v. Voorhees,
Generally, when a defendant relies upon the use of alcohol or drugs as a defense, “mental illness caused by
voluntary
intoxication is not a defense.”
Id.
at 486 (emphasis added). Appellant asserts, however, that he was involuntarily intoxicated at the time of the offenses because, unbeknownst to him, the marijuana he smoked was laced with phencyclidine (PCP).
4
In order to prevail in asserting the defense of involuntary intoxication, appellant must show that: (1) he “was unaware that because of a particular susceptibility to it the substance would have a grossly excessive intoxicating effect” or “was innocently mistaken as to the nature of the substance taken”; (2) the “intoxication was caused by the intoxicating substance in question and not by some other intoxicant”; and (3) he was temporarily mentally ill at the time of the offenses.
See Voorhees,
There are two types of involuntary intoxication arguably at issue, in this case: “pathological intoxication,” which is “intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible,” and “innocent” intoxication, “when intoxication results from an innocent mistake by the defendant about the character of the substance taken, as when another person has tricked him into taking the liquor or drugs.”
City of Minneapolis v. Altimus,
Minnesota law places the burden on the defendant to make a prima facie showing of mental illness or deficiency before the defense will be allowed.
Martin,
We disagree. As the state points out, these details were not brought out until the sentencing hearing. We agree with the state that “[l]ogically, statements made at the sentencing hearing by appellant’s attorney, which statements were mаde well after trial, cannot be construed to be part of a pretrial prima facie showing.” The record does not specifically indicate what appellant provided to the district court in the “initial” showing. It is clear, however, that defense counsel never submitted any additional evidence to make the prima facie showing or legal argument addressing the defense. Because appellant failed to make the requisite factual showing, the district court did not abuse its discretion by precluding the defense of involuntary intoxication. But in any event, it is not really necessary for us to resolve any issues related to the timing or sufficiency of the offer of proof in order to decide this question because we do not believe that the defense of involuntary intoxication is available to appellant under the facts of this case.
We initially observe that marijuana is a controlled substance in Minnesota. Minn. Stat. §§ 152.01, subd. 9 (defining “marijuana”), .02, subd. 2(3) (classifying marijuana as a Schedule I controlled substance) (2006). Additionally, we agree with the California appellate court’s observation in People v. Velez that
[i]t is common knowledge that unlawful street drugs do not come with warranties of purity or quality associated with lawfully acquired drugs such as alcohol. Thus, unlike alcohol, unlawful street drugs are frequently not the substance they purport to be or are contaminated with other substances not apparent to the naked eye.
Appellant cites several cases from other state and federal jurisdictions, arguing thе availability of such a defense.
See, e.g., People v. Brumfield,
The Eighth Circuit has considered an involuntary-intoxication defense based on the voluntary ingestion of an illegal drug purportedly laced with another substance. In
United States v. F.D.L.,
the defendants argued involuntary intoxication, claiming they smoked marijuana that was unknowingly laced with PCP.
In
United States v. Bindley,
the Tenth Circuit observed that a “key component [in an involuntary-intoxication defense] is the lack of culpability on the part of the defendant in causing the intoxication.”
As the state points out, appellant cannot claim that he was pathologically intoxicated because such intoxication occurs when a person, unaware of a particular susceptibility to a substance, experiences a grossly excessive intoxication as a result of using that substance.
See Altimus,
306 Minn, at 469,
Because we conclude as a matter of law that appellant was not entitled to present an involuntary-intoxication defense based on the voluntary ingestion of an illegal controlled substance, we decline to address appellant’s ineffective-assistance-of-counsel claim or defense counsel’s failure to provide the required prima facie showing.
III.
Generally, evidentiary rulings lie within the sound discretion of the district court “and will not be reversed absent a clear abuse of discretion.”
State v. Caulfield,
Appellant appears to have confined his appeal to whether admission of the complaints violated his rights under the Confrontation Clause. “[Wjhether the admission of evidence violates a criminal defendant’s rights under the Confrontation Clause is a question of law [appellate courts] review[ ] de novo.”
Caulfield,
Appellant contends that the’seven criminal complaints introduced by the state to prove that his present offenses were “committed as part of a pattern of criminal conduct” for sentence enhancement under Minn.Stat. § 609.1095, subd. 4, were inadmissible hearsay, admitted in violation of appellant’s Confrontation Clause rights, and highly prejudicial. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.' “The Supreme Court in
Crawford
held that statements from witnesses who do not testify at trial are not admissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant if the statements are ‘testimonial.’ ”
Johnson,
With both the first and second prongs of the plain-error test established, we consider whether the error affected appellant’s substantial rights.
See Griller,
Under Minn.Stat. § 609.1095, subd. 4, the district court “may impose an aggravated durational departure from the presumptive sentence uр to the statutory maximum sentence if the factfinder determines that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” A finding of a pattern of criminal conduct “goes beyond solely the fact of a prior conviction.”
State v. Henderson,
The state presented evidence of appellant’s convictions of: (1) fifth-degree possessiоn of crack cocaine; (2) criminal vehicular operation; (3) felon in possession of a pistol; (4) attempted simple robbery; (5) third-degree sale of a controlled substance; (6) attempted theft from person; (7) attempted third-degree possession of a con
A. Proof by Conviction Alone
We next consider appellant’s convictions of felon in possession of a pistol, attempted theft from person, and attempt^ ed sale of a simulated controlled substance. We conclude that these offenses should not have been used to determine whether appellant engaged in a pattern of criminal conduct as the record contained no “facts” by which the jury could determine whether the offenses had similаr characteristics. For appellant’s felon-in-possession-of-a-pistol conviction, the state offered the plea petition, the sentencing transcript, and a certified copy of the conviction. There were no facts surrounding the offense contained in any of these documents. For appellant’s attempted-theft-from-person conviction, the state introduced the complaint and the plea petition. Without the complaint, there were no facts surrounding this offense. Likewise, for appellant’s attempted-sale-of-a-simulated-controlled-substance conviction, the state introduced the complaint, the plea petition, and a certified copy of the conviction. Again, the complaint was the sole document containing the circumstances of the crime. Without a factual basis concerning these convictions, the use of these offenses amounted to attempted proof by the fact of conviction alone.
See Henderson,
B. “Complaint” Crimes
We now turn to those convictions for which a complaint was submitted in addition to other documentation. As the plea transcript reflects, appellant’s convictions of fifth-degree possession of crack cocaine and criminal vehicular operation were handled at the same hearing. The transcript details that appellant possessed crack cocaine and, while he was under the influence of a controlled substance, had a car accident in which a person suffered serious injuries as a result. 7 A reading of the complaints shows that appellant also tried to flee the scene and tried to discard the drugs once stopped by an officer.
Similarly, for appellant’s conviction of attempted third-degree possession of a controlled substance, the plea transcript shows that appellant possessed cocaine and marijuana.
8
The complaint adds that officers witnessed appellant remove something from his groin area; “[o]fflcers know that it is common for dealers of narcotics to conceal drugs in their groin area or their rectum”; a narcotics sale was witnessed; appellant lied to police about where the money came from; appellant
Finally, regarding appellant’s conviction of third-degree sale of a controlled substance, the plea and sentencing transcript shows appellant admitting that he “knew that it was drugs that [he was] basically selling somebody” and that the substance tested positive for cocaine. 9 The complaint was also introduced, but appellant does not argue, and review of the complaint does not appear to show, that it contained any prejudicial statements concerning the circumstances of the crime.
Although we recognize that the complaints certainly do not cast appellant in a favorable light, appellant has a heavy burden to show that their admission constituted prejudicial error.
See Griller,
DECISION
The district court did not commit prejudicial error in declining to instruct the jury on the lesser-included offenses of theft from person and fifth-degree assault as there was no rational basis to convict appellant of these offenses while acquitting him of first-degree aggravated robbery. Notwithstanding the fact that appellant failed to make the requisite prima facie showing, appellant is precluded as a matter of law from raising the defense of involuntary intoxication when he voluntarily smoked marijuana which, unbeknownst to him, was laced with POP and caused an unanticipated reaction. Although it was error for the district court to admit the criminal complaints, appellant has not shown that his substantial rights were prejudiced by their admission.
Affirmed.
Notes
. Appellant's appellate counsel was not trial counsel.
. This proffer appears to have occurred off the record.
. Defense counsel initially raised a foundation objection when the state began to introduce documents related to appellant's prior convictions. This subsequently became a "standing'' objection. The state then offered together a plea petition, a sentencing transcript, and a warrant of commitment, to which defense counsel raised a hearsay objection based on "writing on these documents.” When the first complaint was introduced along with the plea petition, the plea transcript, and a certified copy of the conviction, defense counsel objected on the grounds of hearsay and lack of foundation. For the remainder of the complaints and other doсuments related to appellant's prior convictions, defense counsel stated the "same objection.” It is not entirely clear whether the "same objection” referred to hearsay or was the "standing” foundation objection.
. PCP is a controlled substance. See Minn. Stat. § 152.02, subd. 3(4)(e), (f) (2006) (listing phencyclidine and phencyclidine immediate precursors as Schedule II controlled substances).
. See supra note 3.
. As for the Exhibit 28 complaint, appellant admitted the truth of the complaint at his plea hearing.
. The plea petition for these offenses and a certified copy of the conviction for fifth-degree possession were also introduced.
. The state also introduced the plea petition, a certified copy of the conviction, and the sentencing transcript.
. The state also introduced the plea petition and a certified copy of the conviction.